MALVINA KOHN V. BOARD OF EDUCATION OF THE CITY OF ORANGE TOWNSHIP, ESSEX COUNTY, 7/19/07, (#292-07)

#292-07 (OAL Decision: Not yet available on-line)
MALVINA KOHN, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY OF 	: 	DECISION
ORANGE TOWNSHIP, ESSEX COUNTY,
:
RESPONDENT.
:
SYNOPSIS
Petitioner – a tenured mathematics supervisor employed by the district since 1997 – appealed the
district’s withholding of her salary increment for the 2006-2007 school year, which was
allegedly based on her performance for the 2005-2006 school year. Petitioner contended that the
Board’s action was arbitrary and capricious, and motivated by the personal animosity of
petitioner’s supervisor. 	Respondent contends that its action in withholding petitioner’s salary
increment was reasonable and that the Commissioner cannot substitute her judgment for that of
the Board.
The ALJ found, inter alia, that: there was no independent evaluation of the recommendation to
withhold the salary increment, which was made by Ms. Frazier, the petitioner’s supervisor;
Ms. Frazier’s recommendation formed the total basis for the Board’s decision; and the reasons
stated in that recommendation were largely without merit. Accordingly, the ALJ concluded that
the withholding of petitioner’s increment was arbitrary, capricious and unreasonable, and
ordered the decision of the Board be reversed.
Upon a full and independent review of the record, the Commissioner agrees with the ALJ, for the
reasons comprehensively detailed in her decision, that the petitioner has sustained her burden of
establishing – by a preponderance of the credible evidence – that the Board’s withholding of her
increment was arbitrary, capricious and unreasonable and must be reversed. Accordingly, the
Commissioner directed the Board to fully restore petitioner’s increment for the 2006-2007 school
year.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the
reader. It has been neither reviewed nor approved by the Commissioner.
July 19, 2007

OAL DKT. NO. EDU 10582-06
AGENCY DKT. NO. 290-8/06
MALVINA KOHN, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY OF 	: 	DECISION
ORANGE TOWNSHIP, ESSEX COUNTY,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	The Board’s exceptions to the June 6, 2007 Initial Decision
were dated June 22, 2007, and filed June 25, 2007, and were therefore untimely pursuant to
N.J.A.C. 1:1-18.4; 1 consequently, the exceptions – and petitioner’s reply thereto – are not
considered herein.
Upon independent and careful review of the record, the Commissioner determines
to adopt the recommended decision of the OAL. In so deciding, the Commissioner was mindful,
as was also aptly recognized by the Administrative Law Judge (ALJ), that it is well-established
that a school district’s decision to withhold a teacher’s increment may not be overturned unless
that decision is “patently arbitrary, without rational basis or induced by improper motives.”
Kopera v. West Orange Bd. of Ed., 60 N.J. Super. 288, 294 (App. Div. 1960) The scope of the
Commissioner’s review in increment withholding matters is “not to substitute [her] judgment for
that of those who made the evaluation but to determine whether they had a reasonable basis for
1 N.J.A.C. 1:1-18.4(a) specifies: “Within 13 days from the date the judge’s initial decision was mailed to the parties,
any party may file written exceptions with the agency head.”

2
their conclusions.” 	Id. at 296. 	As such, there are only two determinations to be made when
reviewing the Board’s decision to withhold petitioner’s increment, i.e., 1) whether the underlying
facts were as those who made the evaluations claimed, and 2) whether it was unreasonable for
them to conclude as they did based upon those facts. 	Additionally, the burden of proving
unreasonableness lies with the petitioner. Id. at 296-297.
Notwithstanding 	such 	a 	heavy 	impediment 	to 	the 	granting 	of 	relief, 	the
Commissioner agrees with the ALJ – for the reasons comprehensively detailed in her decision –
that petitioner has sustained her burden of establishing by a preponderance of the credible
evidence that the Board’s withholding of her increment here was arbitrary, capricious and
unreasonable and, therefore, such action must be reversed.
Accordingly, the recommended decision of the OAL is adopted as the final
decision in this matter. 	The Board is hereby directed to fully restore petitioner’s increment for
the 2006-2007 school year.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: July 19, 2007
Date of Mailing: 	July 19, 2007
2 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C 6A:4-1.1 et seq.